Legislative power

Question 1

Government of limited powers

Answer 1

Congress does not have:

(1) A power to promote the general welfare;
(2) A general police power; or
(3) “Necessary and proper” as a free-standing power.

Question 2

War and national defense

Answer 2

Congress has the power to:

(1) Declare war and maintain the military;
(2) Provide for military discipline of U.S. military personnel; and
(3) Provide for military trial of enemy combatants and enemy civilians, but it cannot provide for military trial of U.S. citizens who are civilians.

Question 3

Militia Clauses

Answer 3

As a general matter, National Guard units are under the dual control of the federal and state governments.

Congress has the power to authorize the President to call National Guard units to execute federal laws, suppress insurrections, and repel invasions.

This constitutional authority extends to use of National Guard units in domestic situations and non-emergency circumstances, and is not subject the approval or veto of the governor of a state.

Question 4

Enclave Clause

Answer 4

Under Article I, Section 8, Clause 17 of the U.S. Constitution, also known as the Enclave Clause, Congress has the general police and regulatory powers over the District of Columbia that a state enjoys over persons and things within its boundaries.

Question 5

Elections Clause

Answer 5

The Elections Clause explicitly empowers Congress to override state laws concerning federal elections.

Question 6

Origination Clause

Answer 6

The Origination Clause requires that bills originate in the House rather the Senate if they raise revenue.

Question 7

Property Clause

Answer 7

The Property Clause of Article IV, Section 3 grants to Congress not only the power to dispose of property owned by the United States and to make incidental rules regarding its use but also the power to protect the property.

There is no limitation under Article IV, Section 3, that Congress can only use properties owned by the government for a public use.

Question 8

Suspension Clause

Answer 8

A detainee retains the privilege to file a habeas corpus petition unless the privilege is suspended.

Congress may not limit federal jurisdiction to hear habeas petitions without first suspending the writ.

Question 9

Suspension Clause: detainees abroad

Answer 9

The Suspension Clause applies to individuals detained in a territory over which the United States has sovereign control, even though such territory is outside the United States.

Question 10

Necessary and Proper Clause: investigations

Answer 10

Congress does not have an express power to investigate, but the Necessary and Proper Clause allows Congress broad authority to conduct investigations incident to its power to legislate.

Although a subpoenaed witness who fails to appear before Congress or refuses to answer questions may be cited for contempt, the witness is entitled to certain procedural due process rights, including the presence of counsel.

Question 11

Necessary and Proper Clause: agency oversight

Answer 11

The Necessary and Proper Clause authorizes Congress to require that executive agencies report their decisions to Congress if such a requirement reasonably implements a statutory program.

Question 12

War and national defense: scope

Answer 12

The authority granted to Congress under the war power of Article I, Section 8, is very broad.

Congress may take whatever action it deems necessary to provide for the national defense in both wartime and peacetime, including rent control of the civilian economy during wartime, and even during the post-war period.

Rational basis analysis does not apply to legislation passed pursuant to congressional war and defense powers.